This brief is submitted
amicus curiae by Amnesty International. Amnesty International is
an independent, private international human rights organization which (1)
seeks the release of "prisoners of conscience" -- men and women
detained anywhere because of their beliefs, color, sex, ethnic origin, language
or religious creed, provided they have not used or advocate violence; (2)
works for fair and prompt trials for all political prisoners and on behalf
of all people detained without charge or trial; and (3) opposes the death
penalty and torture or other cruel, inhuman or degrading treatment or punishment
of all prisoners without reservation. Amnesty International acts on the basis
of the Universal Declaration of Human Rights and other international instruments.

Amnesty International was founded in London in 1961 and now has sections in
forty-four countries (in Africa, Asia, the Americas, Europe and the Middle
East). Individual members number over 500,000 and members, subscribers and
supporters come from more than 120 countries. There are 3,800 local Amnesty
International groups throughout the world working in support of all aspects
of Amnesty International's mandate. Since it was founded, Amnesty International
groups have intervened on behalf of more than 25,000 prisoners in over a hundred
countries with widely differing ideologies. In 1977 Amnesty International
was awarded the Nobel Prize for Peace for its work and in 1978 it received
a United Nations Award for Human Rights.

Amnesty International has formal consultative status or similar formal relations
with the United Nations, UNESCO, the Council of Europe, and in regard to refugees,
the Organization of African Unity. since 1977 Amnesty International has attended
as a "special guest" the annual regular sessions of the General
Assembly of the Organization of American States (OAS).

In its work Amnesty International has received documented evidence of torture,
arbitrary arrests, "disappearances" and summary executions throughout
the world. It has sent observers to assess the fairness of trials in many
different countries. Amnesty International has published factual and analytical
reports on human rights practices all over the world, in its Annual Report,
country reports and other documents, including The Death Penalty (1979), 'Disappearances':
A Workbook (1981), Political Killings by Governments (1983), and Torture in
the Eighties (1984).

In its experience Amnesty International has observed that without the assurance
of certain procedural guarantees, the non-derogable character of the basic
rights enumerated in Article 27, especially the right to life and the right
to human treatment, cannot be reliably protected. These minimum judicial guarantees
should be observed by all governments, especially during a state of emergency
when non-derogable rights are most in jeopardy.

II. Questions
Presented

The Government of
Uruguay has requested an advisory opinion of the Inter American Court of Human
Rights regarding the interpretation of Article 27(2) of the American Convention
on Human Rights .

Article 27(2) provides:

"The foregoing
provision does not authorize any suspension of the following articles: Article
3 (Right to Juridical Personality), Article 4 (Right to Life), Article 6
(Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws),
Article 12 (Freedom of Conscience and Religion), Article 17 (Rights to a
Family), Article 18 (Right to a Name), Article 19 (Rights of the Child),
Article 20 (right to a Nationality), and Article 23 (Right to Participate
in Government), or of the judicial guarantees essential for the protection
of such rights". (emphasis added)

1. Because it is
often during a state of emergency that the basic, non-derogable rights are
most threatened, the Government of Uruguay seeks elaboration of what are "the
judicial guarantees essential for the protection of such rights" which
should also be considered non-derogable.

2. The Government of Uruguay also seeks clarification of the relation of Article
27(2) of the American Convention to Article 25 and 8.

III. Summary
of Argument

1. Article 27(2)
of the American Convention on Human Rights enumerates basic human rights which
may not be suspended even in times of national emergency. Included as non-derogable
rights at the end of paragraph (2) are "judicial guarantees essential
for the protection of such rights".

Amnesty International understands such judicial guarantees to mean those procedural
rights which protect the individual from the abuse of power by the state.
They attach from the moment the individual is taken into custody with either
the tacit or explicit consent of government authorities and remain vested
until the individual is releases. Judicial guarantees fulfill two functions:
they provide an independent review of the legality of the state's custody
of the individual and they ensure human treatment of the prisoner in compliance
with national and international legal obligations.

Procedural guarantees play an important role in protecting all human rights.
The international community has acknowledged their importance by including
them among the substantive rights listed in human rights treaties and declarations.
The international community has also enshrined in human rights agreements
certain rights which are considered so fundamental that no derogation from
them is permitted even when the security of the nation is threatened. Predictably,
it is those rights which are most susceptible to being violated during a state
of emergency.

The judicial guarantees essential to protecting basic human rights to which
Article 27(2) refers, therefore, are those which logic and experience have
proven to be indispensable for safeguarding rights most often violated during
a state of emergency. Rights most vulnerable during a state of emergency and
which can be best protected by judicial guarantees are the right to life and
the right to human treatment.

The judicial guarantees essential for their protection are:

(1) No secret detention
or "disappearances"; (2) No prolonged incommunicado detention;
(3) Recourse to habeas corpus; (4) Observance of certain safeguards during
interrogation and custody; (5) Judicial guarantees relating to a fair trial,
including the right to be heard before a competent, independent and impartial
tribunal, the right to be presumed innocent until proven guilty, the right
to an adequate defense by legal counsel of the person's own choosing, the
right not to be compelled to testify against oneself or to confess guilt,
and the right to appeal the judgment to a higher tribunal.

These judicial guarantees
are either specifically articulated in international human rights agreements
or can be inferred from their provisions. Many of the judicial guarantees
are also found in the Geneva Conventions. If such rights must be observed
in times of war, governments should be obligated to observe them even during
a state of emergency.

If the Court finds that the judicial guarantees enumerated above are essential
for the protection of basic human rights, it follows that it must hold that
they are themselves non-derogable according to Article 27(2) of the American
Convention on Human Rights.

2. Some of the rights here identified as judicial guarantees essential for
the protection of basic rights appear in Articles 25 (right to Judicial Protection)
and 8 (Right to a Fair Trial) of the American Convention on Human Rights;
yet they are not specified in Article 27(2). This apparent inconsistency is
resolved when one considers that the list of rights in Article 27(2). This
apparent inconsistency is resolved when one considers that the list of rights
in Article 27(2) by definition was not meant to be all inclusive. The concept
of judicial guarantees essential to protect the basic rights included in Article
27(2) introduces another category of non-derogable rights. These rights obligate
state parties to provide judicial guarantees to ensure that basic human rights
will not be suspended even during a state of emergency.

Because the drafters intended that the American Convention on Human Rights
should be a living, relevant document extending the protection of human rights
to cover all situations of human rights abuses, the provision concerning essential
judicial guarantees was left open to interpretation and implementation by
the parties. The drafters, however, also provided a means for the interpretation
of this and other provisions of the Convention, namely, the Inter American
Court of Human Rights. Since the parties themselves have in many instances
failed to give substance to this provision, the Court should now recognize
and proclaim the above mentioned judicial guarantees as being among those
essential for the protection of basic human rights and should find those rights
to be non-derogable.

IV. Article
27(2) of the American Convention on Human Rights Provides for

Article 27 of the American Convention on Human Rights ("ACHR") has
two main elements. It defines, in paragraph 1, the circumstances under which
rights set down in the Convention may be suspended, namely, "in time
of war, public danger, or other emergency that threatens the independence
or security of a State Party". In paragraph 2, Article 27 also insulates
from that exemption a number of rights from which no derogation is permitted.
These are the substantive rights that are considered so basic, so essential,
that no emergency or threat to national security can justify their violation.
Drafters of the ACHR considered these rights so important that they enumerated
them lest a vague or ambiguous reference leave their compliance in doubt .

Many of these rights are accorded the same non-derogable status in other treaties.
For example, the International Covenant on Civil and Political Rights ("ICCPR")
holds sacrosanct, inter alia, the right to life and the right to be free from
torture, cruel, inhuman or degrading treatment or punishment . The European
Convention on Human Rights ("ECGR") similarly holds, inter alia,
the right to life and the right not to be subjected to torture, inhuman or
degrading treatment or punishment to be non-suspendable . Clearly then, the
international community is agreed that certain rights are so intrinsic to
civilized society that they must always be protected.

The completion of the ACHR followed that of the ICCPR by three years and that
of the ECHR by nineteen years. The drafters thus had the benefit of experience
and thus the opportunity to acknowledge that without an additional proviso
the basic non-derogable rights remained vulnerable and potentially unenforceable
. To ensure that these basic rights would be implemented and respected at
all times, then, the drafters of the ACHR considered it essential to include
as a safety net the principle of non-suspendable judicial guarantees.

Judicial guarantees are the set of rights capable of defending the individual
who comes under the control of governmental authorities. These are essentially
procedural rights which stand between the individual and the untrammeled power
of the state. These rights attach at the moment the individual loses his or
her liberty.

In all societies observing the rule of law, an individual is at liberty until
reasonably suspected of having committed a crime. At that moment the state
may initiate procedures by which it has the authority to arrest and detain
the individual, conduct investigations, present evidence in a court of law
and execute the sentence. In some legal systems no one can be arrested unless
a magistrate signs a warrant; in many systems no one can be detained unless
the detention is approved by a judge or magistrate; the accused in many legal
systems must be brought before a judge to be charged. Legal challenges to
unlawful arrest and detention or habeas corpus proceedings are generally heard
by a judge. In some countries, the judiciary officially controls the police
and may take part in disciplinary acts against the police for infractions
of the rules. At almost all stages of criminal proceedings then the only protection
the individual has against the abuse of power is the objective review of the
judiciary. The term judicial guarantees, therefore, fully encompasses procedures
which commence from the moment of arrest.

Numerous studies, conventions and other normative instruments attest to the
importance the international community attaches to procedural rights which
protect basic human rights . While the goal of all judicial procedures is
protection of the prisoner and fairness of the process by which guilt or innocence
is determined, some of these procedures are considered essential to protect
the basic rights and thus, according to the ACHR, would be non-derogable even
in a time of national emergency.

Procedural guarantees are already found in the Convention or can be inferred
by reference to a number of rights listed in the Convention. Logic and experience
dictate which guarantees should be considered essential for the protection
of basic rights. Since the drafters only referred to the concept of judicial
guarantees and did not mention specific articles, the court in proclaiming
certain judicial guarantees as non-derogable should not be confined necessarily
to the text of the Convention.

The international community, in fact, has already recognized that without
certain procedural guarantees against practices which include incommunicado
detention and "disappearances", the right to freedom from torture
and other inhuman treatment cannot be protected. The Human Rights Committee,
for example, appears to have found an obligation for states to take steps
to prohibit incommunicado detention and practices deterring "disappearances",
for example, by reading together Covenant Article 7 with Article 2. Article
2 requires states to take the measures necessary to give effect to the rights
recognized in the ICCPR. In considering cases of torture or similar practices
the Human Rights Committee stated

"It follows
from article 7, read together with article 2 of the Covenant, that States
must ensure an effective protection through some machinery of control...
Among the safeguards which may make control effective are provisions against
detention incommunicado, granting, without prejudice to the investigation,
persons such as doctors, lawyers and family members access to the detainees;
provisions requiring that detainees should be held in places that are publicly
recognized and that their names and places of detention should be entered
in a central register available to persons concerned, such as relatives..."

If the Court finds
that prolonged incommunicado detention, "disappearances" and other
practices violate articles 4 and 5 of the ACHR, it is recommended that the
Court similarly hold that state parties must take effective measures to end
those practices. This obligation flows not only from the prohibition in Article
27(2) against suspending judicial guarantees to protect basic rights but also
from the affirmative obligation in Article 2 which requires states to adopt
measures necessary to give effect to rights and freedoms contained in the
Convention.

According to documentation which Amnesty International has received concerning
countries not only in the Americas but all over the world, when these judicial
guarantees have been suspended, basic non-derogable rights have been violated:

(1) No secret detention
or "disappearances",

(2) No prolonged incommunicado detention;

(3) Recourse to habeas corpus;

(4) Observance of certain safeguards during interrogation and custody;

(5) Judicial guarantees relating to a fair trial.

These procedural
rights are not meant to comprise an exhaustive and final list. As new governmental
practices arise which might endanger basic rights, new judicial guarantees
to protect those rights might be needed. These particular rights have been
selected because of their importance placed on them by the international community
in the wake of current practices which violate basic rights and their logical
nexus to the basic rights to be protected.

1. No Secret
Detention or "Disappearances"

Secret detentions
or "disappearances" are not new phenomena although the term "disappearances"
or "desaparecidos" was not widely used until the mid-1970s . By
"disappearances" Amnesty International means a case where

"- there are
reasonable grounds to believe that a person (the victim) has been taken
into custody the authorities or their agent;

- the authorities deny that the victim is in their custody or the custody
of their agent;

- there are reasonable grounds to disbelieve that denial" .

When a person is
secretly detained or "disappeared", there are no legal constraints
on the government; even all pretenses of observing the rule of law are effectively
discarded. These conditions not only jeopardize a person's basic rights, but
the practice of "disappearances" itself is so heinous and beyond
the bounds of civilized conduct that it may be said to constitute torture,
cruel, inhuman or degrading treatment in violation of the non-derogable right
listed in Article 27(2) of the American Convention on Human Rights as well
as in other human rights treaties .

The Working Group on Enforced or Involuntary Disappearances, established by
the United Nations in 1980 to address this growing problem , has identified
the rights which are denied to a "disappeared" person:

"(1) the right
to liberty and security of the person;

(2) the right to humane conditions of detention and freedom from torture,
cruel or degrading treatment or punishment;

(3) the right to life" .

For the following
reasons the Court should similarly find that "disappearances" deny
basic human rights and therefore hold that judicial guarantees against this
practice are essential and non-derogable.

A "disappearance" violates the right to freedom from torture, cruel,
inhuman or degrading treatment or punishment in several ways. First, it provides
the opportunity and the vehicle for mistreatment without any constraints of
law or legal procedures. Second, a "disappearance" may itself constitute
torture or prohibited ill-treatment in that it, at a minimum, is severe mental
pain and suffering within the terms of the definition of torture found in
all international instruments outlawing torture .

The practice of "disappearances", moreover, inflicts severe mental
pain and suffering not only on the victim but on the family and loved ones
as well. The Human rights Committee in one case, for example, has held that
the applicant, the victim's mother, was herself "a victim of the violations
of the Covenant, in particular of Article 7, suffered by her daughter"
. The Inter American Commission on Human Rights ("IACHR") too has
held the procedure of "disappearances" to be cruel and inhuman and
in its 1982-1983 Annual Report found "disappearances" to be a form
of torture for the victim's family and friends.

A permanent "disappearance" also violates the right to life as those
who "disappear" must be understood to have actually been extra judicially
executed during detention. Amnesty International observed in 'Disappearances'
A Workbook:

"Wherever there is or has been concern about a pattern of "disappearances",
there has also been a systematic practice of extra judicial execution. In
many countries where people have been murdered with the complicity of the
officials, they have first "disappeared". When individuals have
"disappeared" for long periods of time (the period varies, depending
on the country, from a few months to a couple of years), they are widely assumed
to have been secretly executed" .

Finally, a "disappearance" violates the liberty and security of
the person because the arrest and detention are arbitrary, in that they are
not based on legal grounds or executed in accordance with procedures established
by law. The Human Rights Committee, for example, has twice found violations
of Article 9 of the ICCPR because of the victim's secret detention . In two
other cases involving "disappearances" the IACHR also has found
violations of Article 7 of the American Convention on Human Rights .

The right to liberty and security of the person, though not a non-derogable
right, is considered so important that its breach entitles the victim to an
enforceable right of compensation under the ICCPR . Victims presumably could
claim compensation for its breach under Article 63 of the American Convention
on Human Rights as well .

Furthermore, it must
be remembered that no state may derogate from this or any right more than
strictly required by the exigencies of the situation. It is hard to imagine
a national emergency which could justify the authorities causing a person
to disappear. While it is possible that some other elements of the right to
security of the person might be temporarily suspended in some situations,
a "disappearance" has been categorically condemned by the international
community as a violation of that right.

The judicial guarantee against secret detention or "disappearance"
then is essential to protect the basic rights of freedom from torture, cruel
or degrading treatment or punishment, and the right to life as well as certain
elements of the right to liberty and security of the person. The Court should
hold that the judicial guarantees against "disappearances" are non-derogable
rights necessary to protect the rights to life and to humane treatment and
should recommend specific measures for implementing these procedural rights.

Guidance for implementing this judicial guarantee may be found in the recommendations
of both the OAS General Assembly and the IACHR. In resolution AG/RES.510 (X-0/80)
adopted in regard to the problem of disappearances referred to in the Annual
Report and Special Reports of the Inter American Commission on Human Rights,
the General Assembly at its tenth regular session recommended to governments

"that central
records be established to account for all the persons that have been detained,
so that their relatives and other interested persons may promptly learn
of any arrest that may have been made; to request that arrests be made only
by competent and duly identified authorities, and that the arrested persons
be kept in premises designed for that purpose" .

In the Annual Report
of the Inter American Commission on Human Rights 1981-1982, the Commission
in its general consideration of "Areas in Which Steps Need to Be Taken
Towards Full Observance of the Human Rights Set Forth in the American Declaration
of the Rights and Duties of Man and the American Convention on Human Rights
Set Forth in the American Declaration of the Rights and Duties of Man and
the American Convention on Human Rights" similarly

"repeated
its request that the fate of those who have disappeared after being arrested
be clarified and their families informed of their status. It also recommended
that centralized arrest records be established, that arrests be made only
by competent authorities with proper identification, and that the detainees
be held in places designed for the purpose" .

Thus organs of the
OAS have already identified steps needed to be taken to eradicate the practice
of "disappearances": 1) establishing central records; 2) having
arrests made only by competent authorities; 3) holding detainees only in areas
designed for that purpose; 4) informing families of the status of detainees.
Amnesty International endorses these measures as effective protection against
the practice of "disappearances" and urges the Court to adopt them
as judicial guarantees protecting basic rights found in Article 4 and 5 of
the Convention.

Amnesty International also considers the Standard Minimum Rules for the Treatment
of Prisoners ("SMRTP) to provide effective measures for deterring "disappearances".
Article 7 of the SMRTP requires that in every place where persons are imprisoned
there shall be kept a bound registration book in which shall be entered in
respect of each prisoner received: a) information concerning his identity;
b) the reasons for his commitment and the authority therefore; c) the day
and hour of his admission and release.

2. No Prolonged
Incommunicado Detention

Incommunicado detention
is the practice of denying a person arrested any access to the outside world,
to legal counsel, medical personnel or family, or failing to bring the person
promptly before the appropriate judicial authorities. Prolonged incommunicado
detention is holding a person in such circumstances .

During the period of incommunicado detention the right to life and the right
to be free from torture, cruel, inhuman or degrading treatment, two non-derogable
rights, are seriously threatened. The detainee is under the complete control
of the authorities who may perceive the person as the enemy or as a serious
threat to national security. There are no witnesses to any misdeeds and the
likelihood of ill-treatment being discovered can also be foreclosed by detaining
the person long enough for any evidence of such misdeeds to heal. The opportunity
for abuse by the detaining authorities, where no checks or oversight are provided,
is greatly enhanced.

In its study Torture in the Eighties, Amnesty International observed:

"Torture most
often occurs during a detainee's first days in custody. These vulnerable
hours are usually spent incommunicado, when the security forces maintain
total control over the fate of the detainee, denying access to relatives,
lawyer or independent doctor. Some detainees are held in secret, their whereabouts
known only to their captors. The authorities may deny that certain detainees
are held, making it easier to torture or kill them or to make them "disappear".
Incommunicado detention, secret detention and "disappearance"
increase the latitude of security agents over the lives and well-being of
people in custody" .

Judicial guarantees
to prohibit prolonged incommunicado detention must then contain two elements:
the requirement that the authorities bring the detainee promptly before a
judge, and the right of the detainee to have access to the outside world.
In the absence of these judicial guarantees, the right to life and to human
treatment can be endangered.

The right of the detainee to be brought promptly before a judge is found in
numerous international treaties, as well as in other normative instruments.
Article 7(5) of the ACHR states: "Any person detained shall be brought
promptly before a judge or other officer authorized by law to exercise judicial
power". Similarly in Article 9 (3) of the ICCPR and Article 5 of the
ECHR, persons accused of an offense have the right to be brought "promptly"
before a judge or an officer vested with judicial authority.

The object of this procedural right is, in part, to protect the detainee form
arbitrary arrest and detention. The impartial review of a judge obviously
will deter or prevent the state from making false or illegal arrests and/or
detaining someone in the absence of sufficient evidence. Equally important,
however, the right to be brought promptly before a judge is critical to terminating
that period during which the detainee is utterly at the behest of his captors.
It provides a check on ill-treatment and a means for detainees to make known
their complaints.

Similarly the right to have access to legal counsel, medical personnel and
family acts as an essential safeguard for the right to humane treatment. According
to the Standard Minimum Rules for the Treatment of Prisoners, a prisoner should
be allowed to see a medical officer "as soon as possible after admission"
(Article 24). A detainee or "untried prisoner" should be allowed
"to inform immediately his family of his detention" and to be allowed
to receive visits from them (Article 92) and to receive visits from legal
counsel (Article 93).

Prolonged incommunicado detention has been recognized by the international
community as the means by which authorities violate the right to life and
the right to humane treatment. Therefore it is recommended that the Inter
American Court of Human Rights hold that a prohibition on prolonged incommunicado
detention is a judicial guarantee essential for the protection of those basis
rights.

3. Recourse
to Habeas Corpus

The Inter American
Court of Human Rights in January 1987 handed down an advisory opinion stating
that the writ of habeas corpus is a judicial guarantee essential for the protection
of basic human rights which cannot be suspended by the state parties to the
American Convention on Human Rights . Amnesty International fully supports
this opinion and finds no need to elaborate upon the issues already considered
by the Court.

4. Safeguards
during Interrogation and Custody

Even though lawfully
arrested and detained and brought promptly before a judge, a prisoner is still
subject to possible infringements of the right to physical integrity and the
right to life during custody. Certain safeguards should be observed during
interrogation and custody to protect the detainee from over-zealous and unscrupulous
interrogators and prison officials. Some of the procedures for detention and
interrogation that should be observed concern the recording of interrogation
sessions, medical safeguards during interrogation, and promulgation of codes
of conduct for those conducting investigations such as the UN Code of Conduct
for Law Enforcement Officials .

Both the Declaration on the Protection of all Persons from Being subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Declaration")
and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment ("Torture Convention") obligate states in general
to take measures to prevent torture and ill-treatment. The Torture Convention
specifically recommends that states

"keep under
systematic review interrogation rules, instructions, methods and practices
as well as arrangements for the custody and treatment of persons subjected
to any form of arrest, detention or imprisonment... with a view to preventing
any cases of torture".

The Inter American
Convention to Prevent and Punish Torture does not contain a provision specifically
concerned with review of interrogation practices and treatment in custody.
That Convention does share with the Declaration and Torture Convention, however,
articles concerning the general obligation to enact preventive measures and
contains one specific provision obligating states to take measures

"so that,
in the training of police officers and other public officials responsible
for the custody of persons temporarily or definitely deprived of their freedom,
special emphasis shall be put on the prohibition of the use of torture in
interrogation, detention, or arrest".

The Court should
look to these three instruments which prohibit torture for specific means
to implement procedural safeguards during interrogation and custody, a time
when the rights to life and to humane treatment are clearly subject to abuse.

The Standard Minimum Rules for the Treatment of Prisoners here also provides
some specific means for implementation. Article 24 provides that medical officers
should see every prisoner "as soon as possible after admission".
Medical officers are also to report to the prison director whenever any condition
of imprisonment injuriously effects a prisoner's physical or mental health
as provided in Article 25(2).

Amnesty International agrees that it is important for medical officers to
examine the detainee before interrogation begins. But is equally important
that medical examinations take place after each session and periodically during
detention. The detainee should be allowed to have an examination by his own
doctor or at least a second opinion by an independent medical officer. A detailed
record of these examinations should always be made available to the detainee's
own doctor, lawyer and family.

Amnesty International also believes governments should adopt and publish codes
of conduct for law enforcement officials and those who maintain authority
over detainees and prisoners. These codes should include a proscription against
torture and ill-treatment and an obligation to report abuses to the appropriate
authorities.

An essential safeguard against torture during interrogation is an effective
mechanism for hearing prisoners' complaints about ill-treatment. Adequate
measures should be taken to ensure that prisoners who have been ill-treated
or tortured can complain to the authorities. These complaints should be investigated
and acted upon and should not further jeopardize the detainee's rights.

Article 8 of the Inter American Convention to Prevent and Punish Torture,
for example, guarantees the right of any person accusing the state of torture
to have an impartial examination of his or her case and obligates the state
to conduct an investigation of the allegations. The Declaration and Torture
Convention contain similar provisions and the Torture Convention, in addition,
provides in Article 14 for an enforceable right to fair and adequate compensation
for the victim or his dependents.

In its Twelve-Point. Program for the Prevention of Torture adopted by the
organization in October 1983, Amnesty International urged implementation,
inter alia, of the following measure:

"Governments
should keep procedures for detention and interrogation under regular review.
All prisoners should be promptly told of their rights, including the right
to lodge complaints about their treatment. There should be regular independent
visits of inspection to places of detention. An important safeguard against
torture would be the separation of authorities responsible for detention
from those in charge of interrogation".

The Inter American
court of Human Rights should recognize that safeguards during interrogation
and custody are essential to protect the right to life and to humane treatment.
Those safeguards can be found in the international and regional instruments
concerning torture, the SMRTP, the Code of conduct for Law Enforcement Officials
and other international agreements. Procedures regarding medical examinations,
the recording of the details of interrogation sessions, and provision for
complaints mechanisms and investigations into allegations of torture should
be regarded as essential, non-derogable guarantees incorporated in Article
27(2) of the American convention on Human Rights.

5. Rights
Relating to Fair Trial

The nexus between
the judicial guarantee of a fair trial and non-derogable rights to life and
to humane treatment is clear. A conviction and sentence resulting from an
unfair trial must be considered arbitrary and therefore invalid, not being
based on a fair, independent and impartial hearing in accordance with national
and intentional law. To carry out a prison sentence against a person who has
not received a fair trial, therefore, could be said to amount to a punishment
in violation of Article 5(2). To execute a person who has not received a fair
hearing could be said arbitrarily to deprive him or her of the right to life
in violation of Article 4(1). The judicial guarantee of a fair trial then
also protects the right to life and to humane treatment.

Article 8 of the American Convention on Human Rights lists numerous rights
incorporated in the right to a fair trial. Many of these rights are also found
in the preamble of resolution (XXVII) adopted by the Sub-Commission on the
Prevention of Discrimination and the Protection of Minorities at its Twenty-seventh
session (1974). The resolution states the following rights relating to a fair
trial are basic for any person subjected to any form of detention or imprisonment:

"the right
to communicate with legal counsel; the right to be tried in his presence,
and to defend himself in person or through legal assistance of his own choosing;
the right to examine, or have examined, the witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him; the right to have free assistance
of an interpreter if he cannot understand or speak the language used in
court; the right not to be compelled to testify against himself or to confess
his guilt; the right to a fair and public hearing by an independent and
impartial tribunal; the right to be presumed innocent until proved guilty
according to law".

In protecting the
basic rights, such as the right to life, other intergovernmental organizations
have more narrowly circumscribed the essential rights relating to a fair trial.
In particular, the Human Rights Committee in its general comment on Article
6 of the ICCPR concerning the death penalty has stated "The procedural
guarantees... prescribed [in Article 14] must be observed, including the right
to a fair hearing by an independent tribunal, the presumption of innocence,
the minimum guarantees for the defense, and the right to review by a higher
tribunal" .

The Economic and Social Council resolution 1984/50 has adopted "Safeguards
Guaranteeing Protection of the Rights of Those Facing the Death Penalty".
Among the safeguards specified to protect the right to life form arbitrary
or summary execution one may glean the elements of a fair trial:

"Capital punishment
may only be carried out pursuant to a final judgment rendered by a competent
court after legal process which gives all possible safeguards to ensure
a fair trial, at least equal to those contained in article 14 of the International
Covenant on Civil and Political Rights, including the right of anyone suspected
of or charged with a crime for which capital punishment may be imposed to
adequate legal assistance at all stages of the proceedings" .

Among those which
Amnesty International considers essential judicial guarantees for a fair trial
are: the right to be heard before a competent, independent and impartial tribunal;
the right to be presumed innocent until proven guilty; the right to an adequate
defense by legal counsel of the person's own choosing; the right not to be
compelled to testify against oneself or to confess guilt; and the right to
appeal the judgment to a higher tribunal. With all these elements present,
a trial may still be unfair by reason of other defects; but certainly where
any one of these is missing, the accused cannot be said to have had a fair
trial, and a sentence carried out pursuant to the court's decision may violate
one of the basic human rights.

In determining the essential judicial guarantees for a fair trial the Court
should be guided by the following principles which are based on provisions
in the major international human rights agreements .

a) The
right to be heard before a competent, independent and impartial tribunal

This right is found in the Universal Declaration (Article 10), the American
Convention on Human Rights (Article 8[1], the ECHR (Article 6[11]) and the
ICCPR (Article 14[1]). The common elements in these provisions allow one
to define this right in the following manner: A competent, and independent
and impartial tribunal is one which is established by law and conforms to
customary international and national legal requirements. The judge must
not be prejudiced or influenced in his consideration of the case by information
or pressure from outside the courtroom. The trial should take place within
a reasonable amount of time. Since this judicial guarantee would apply even
during a state of emergency, "reasonable" in that instance should
be as soon as possible given the exigencies of the situation.

b) The right to be presumed innocent until proven guilty

Again, this right
is so basic it appears in almost the exact language in all four human
rights documents. The Universal Declaration, (Article 11[1], the American
Convention on Human Rights, (Article 9[2]), the ECHR, (Article 6[2]) and
the ICCPR (Article 14[2]) all refer to the right to be "presumed
innocent until proved guilty according to law".

This presumption
of innocence must be reflected in the proceedings of the court. The judge
must be impartial and assess the defendant's guilt based only on the evidence
adduced during the proceedings. Such evidence should only be presented in
accordance with rules established by law. The court may not itself present
evidence and the accused must be allowed to refute the evidence. The logical
presumption here is that the accused must be able to be present during the
trial and must be allowed to confront the evidence introduced against him
or her, rights also prescribed in the Sub-Commission's Resolution 7.

c) The right to an adequate defense by legal counsel of the person's
own choosing

The right to
counsel and an adequate defense is found in the UDHR (Article 11[1]),
the American Convention on Human Rights (Article 8[2][d], the ECHR (Article
6[2][n] and [c]) and ICCPR (Article 14[2][b]). In cases involving capital
punishment, the ECOSOC safeguards also provide for "adequate legal
assistance at all stages of the proceedings" .

It is essential
that the detainee has access to a lawyer in all stages of the proceedings.
If he or she is truly presumed innocent, the right to counsel to prepare
a defense must be inviolate. Without the advice of counsel, the detained
person may unknowingly give evidence against his or her interest or be forced
to confess guilt. The visits of a lawyer also deter ill-treatment and torture;
where such treatment occurs, the lawyer may be the only independent witness.

A defense is not adequate unless the accused has had sufficient time to
brief counsel and counsel has had a reasonable amount of time to prepare
the case. This means that counsel must have access to the accused in circumstances
which protect the lawyer-client privilege. Counsel must also have access
to any evidence which may be used in the proceedings.

The accused should be able to select his or her own legal counsel. Depending
on the circumstances of the accused, it may be necessary to provide free
or subsidized legal representation. The detainee's right to free legal assistance
is found in the American Convention on Human Rights (Article 8[2][e]) and
the ICCPR (Article 14[2][d]).

d) The right not to be compelled to testify against oneself or to
confess guilt

The American Convention on Human Rights (Article 8[2][g] and the ICCPR (Article
14[3][g]) explicitly state this as a right although it can be inferred from
other articles in the UDHR referring to the right to a "fair hearing"
and "all the guarantees necessary for his defense".

This right ensures that the accused not be compelled to cooperate in the
collection of evidence against him or her. This right also includes the
prohibition against using as evidence a confession which was coerced under
duress or torture. All three international instruments relating to the prohibition
against torture recognize the importance of denying the use of such coerced
testimony in any proceedings as an effective deterrent against torture.
The Inter American Convention to Prevent and Punish Torture states in Article
10

"No statement
that is verified as having been obtained through torture shall be admissible
as evidence in a legal proceeding, except in a legal action taken against
a person or persons accused of having elicited it through acts of torture,
and only as evidence that the accused obtained such statement by such
means".

The Declaration
and Torture Convention impose a similar obligation not to use evidence "established
to have been made as a result of torture" . The Declaration, however,
omits the useful and necessary exception contained in both Conventions that
such statements may be used as evidence in their own behalf .

e) The right to appeal the judgment to a higher tribunal

The right to appeal to a higher tribunal is found in the American Convention
on Human Rights (Article 8[2][h] and the ICCPR (Article 14[5]). It ensures
that the accused has a right to have the judgment of the court reviewed
by another, higher court. This presumes that the accused will receive the
verdict in writing and that sufficient time is given for such an appeal
to be made.

These judicial guarantees are meant to protect the accused even in a state
of emergency. It is interesting to note that the Geneva Conventions recognize
the right to a fair trial even during times of war. The Third Geneva Convention
concerning treatment of prisoners of war, for example, provides for procedures
involving disciplinary and criminal prosecution during international armed
conflict.

Article 96 requires that a prisoner of war accused of offenses against discipline
shall be given

"precise
information regarding the offenses of which he is accused, and given an
opportunity of explaining his conduct and of defending himself. He shall
be permitted, in particular, to call witnesses and to have recourse, if
necessary, to the services of a qualified interpreter. The decision shall
be announced to the accused prisoner of war and to the prisoners' representative".

Prisoners of war
accused of crimes are also guaranteed certain rights relating to a fair
trial. Article 99 prohibits retroactive penalties and moral or physical
coercion to induce a confession, and provides for the opportunity to present
a defense and the assistance of counsel. Under Article 102 a sentence is
valid only if pronounced by a military court competent to try similar military
personnel of the government in power; Article 103 provides for a trial to
take place as soon as is reasonably possible. Article 106 provides for a
right of appeal equal to the right given the members of the armed forced
of the Detaining Power.

The Fourth Geneva Convention which concerns protection of civilians in time
of war also recognizes procedural guarantees for a fair trial in criminal
proceedings including the right to a "regular trial" by competent
courts; the right of the accused to be informed in writing and in their
own language of the charge, and a speedy trial (Article 71); the right of
the accused to present evidence in their own defense, the assistance of
counsel of their own choice (article 72) and the right of appeal provided
for by the laws applied by the Court (Article 73).

Protocol I concerning international armed conflicts prescribes in Article
75 certain "fundamental guarantees". Among them are: the right
to be informed promptly of the charges in a language known to the accused;
the right to be heard by an "impartial and regularly constituted court";
all necessary means of defense; the presumption of innocence; the right
to be tried in one's own presence; the right not to be compelled to confess
guilt; and the right to be advised upon conviction of "judicial and
other remedies and of the time-limits within which they may be exercised".

Common Article 3 prohibits the passing of sentences and the carrying out
of executions without previous judgment pronounced by a regularly constituted
court, affording all the judicial guarantees which are recognized as indispensable
by civilized people". (emphasis added) Protocol II, which develops
and supplements Common article 3, provides the judicial guarantees granted
in Protocol 1 during international armed conflict for criminal proceedings
during non international armed conflict.

Procedural guarantees for a fair trial even during times of armed conflict
have been recognized as essential under international law. If even during
times of war respect for a fair hearing of criminal charges is inviolate,
it is suggested that the Court should be able to find no grounds to justify
suspension of those judicial guarantees to a fair trial which inevitably
protect the right to life and to humane treatment.

II. Article 27(2)
Incorporates by Reference Many of the Rights Found in Articles 25 and 8

While Article
27(2) does not make specific reference to Articles 25 and 8, the concept
of judicial guarantees essential for the protection of the basic human
rights contained in Article 27(2) must necessarily include some of the
rights articulated in those articles. That the drafters took care to list
the non-derogable rights in the first instance and then only made reference
to those guarantees necessary to protect such rights, however, is initially
perplexing.

The apparent inconsistency
can be resolved in several ways. In the first place, the list of rights
in Article 27(2) was not meant to be all inclusive; the fact that the final
phrase in 27(2) refers to other judicial guarantees indicates that the framers
envisaged a second series of procedural rights which state parties would
have to observe as being non-derogable . The fact that Articles 25 and 8
were at least partially included in generic language and not specifically
listed should not preclude them from being considered within the group of
non-suspendable rights.

Secondly, Articles 25 and 8 may have been included only in generic language
because not all their provisions may be deemed equally essential for the
protection of rights listed. Rather than exclude any of the rights within
these articles, the framers should be understood as having merely referred
to the general principles contained within the articles themselves.

Finally, the reason this phrase was drafted in generic language may be explained
by examining the travaux preparatoires.

The travaux preparatoires reveal that the draft Convention prepared
by the Secretariat of the Inter American Commission on Human Rights caused
some division among the delegates to the Conference Committee I who were
charged with drafting the substantive articles.

The IACHR draft contained in original Article 24(2) the following list of
non-derogable rights: "the right to life, integrity of the person,
protection against arbitrary detention, due process of law, freedom
of thought , conscience and religion, recognition of juridical personality
and the right not to be deprived of liberty for debt" . (emphasis added).

Several states, however, perceived conflicts between provisions of their
respective constitutions which permit suspension of rights and non-derogable
rights specified in Article 27(2) . Since some delegates favored mentioning
procedural rights in only general terms while others insisted that the articles
be referred to specifically, Committee I established a Working Group to
determine "the most convenient wording" for that paragraph. The
Working Group prepared the following draft:

Article 24(27)

"2. The
foregoing provision does not authorize any suspension of rights established
in the following articles: 2(to the recognition of juridical personality);
3 (to life); 4 (to integrity of the person); 5 (to not be subject to slavery);
8 (to not be subject to ex post facto laws); 11 (to the freedom of conscience
and religion); 16 (to contract matrimony and to protection of the family);
17 (to a name); 18 (to nationality); 21 (to participate in government)"
.

This proposal was
approved by Committee I; those who had advocated specific reference to non-derogable
rights had succeeded. In the debate over substantive rights, however, the
concern over procedural rights was momentarily set aside.

In plenary session, however, the United States Delegation proposed a clause
which would give some procedural means for protecting non-derogable rights
by adding the phrase "judicial guarantees essential to protect unsuspendable
rights" . Adopting this phrase was obviously a compromise solution
meant to obligate states to provide some procedural guarantees while giving
enough latitude to accommodate those states whose constitutional provisions
allow suspension of procedural guarantees. Clearly, however, the drafters
had agreed to bind states to provide a modicum of procedural rights that
would vouchsafe the fundamental rights.

VI. Conclusion

The history of the
Americas reveals that many states fail to take seriously their obligations
under Article 27(2) of the American Convention on Human Rights not to suspend
basic human rights at any time without exception. Documented reports of torture,
"disappearances" and extra judicial executions especially during
states of emergency have become all too common. Some further means of protecting
the rights to life and to humane treatment must be found.

Amnesty International believes that the American Convention on Human Rights
contains within its provisions the necessary means for effectively safeguarding
the basic rights. All the major human rights treaties contain language that
states should undertake measures necessary to give effect to the rights contained
in their respective agreements; only the American Convention on Human Rights
contains a provision explicitly obligating states to provide non suspendable
judicial guarantees to protect the basic rights.

Although drafters of the convention did not specify which judicial protections
are needed to safeguard basic human rights they did empower the Inter American
Court of Human Rights to interpret provisions of the Convention. Through this
power of the Court the drafters have ensured that the Convention is a living,
relevant document designed to function effectively to protect human rights.
The Court now has the opportunity to state specifically and with authority
what are the essential and therefore non-derogable judicial guarantees which
will effectively protect basic rights.

In light of practices known to occur in the Americas which abuse fundamental
rights, Amnesty International respectfully urges the Court to find that basic
human rights, in particular the rights to life and humane treatment, cannot
be protected adequately and effectively in the absence of the following judicial
guarantees. Amnesty International urges the Court to specifically recommend,
where appropriate, the means for implementing these judicial guarantees which
can be found in international agreements and the statements of organs of the
OAS and other international bodies.

1. No secret
detentions or "disappearances"

This practice places in extreme jeopardy the basic rights to life and to
humane treatment and may itself also constitute a violation of the right
to humane treatment. Amnesty International respectfully urges the Court
categorically to prohibit this practice and to find as essential procedural
safeguards the following measures which have been articulated by the OAS
General Assembly and the Inter American Commission on Human Rights:

a) establishing
central prison records;
b) having arrests made only by competent authorities;
c) holding detainees only in areas designated for that purpose;
d) informing families of the status of detainees.

Amnesty International
would further urge the Court to recommend that central records contain information
concerning the identity of the detainee or prisoner; the reasons for his
commitment and the authority therefore; and the day and hour of his admission
and release.

2. No prolonged
incommunicado detention

To prevent the abuse of rights often associated with this practice, Amnesty
International respectfully urges the Court categorically to prohibit prolonged
incommunicado detention as well. Governments should be obligated under Article
27(2) to adopt the following essential judicial guarantees:

a) bringing the
detainee promptly before a judge or other officer authorized by law to
exercise judicial power;

As the Court has already stated, this is a non-derogable right which plays
an essential role in the panoply of procedural guarantees.

4. Safeguards
during interrogation and custody

To protect detainees' and prisoners' basic rights throughout the period
of incarceration, Amnesty International respectfully urges the Court to
find the following safeguards are essential and therefore non-derogable:

a) keeping under
regular review procedures for detention and interrogation;
b) requiring medical personnel to examine and report on the prisoner's
health before, during and after interrogation sessions;
c) informing prisoners of their rights, including the right to lodge complaints
of torture or ill-treatment;
d) conducting impartial and effective investigations of such complaints,
punishing those responsible and protecting complainants and witnesses
from intimidation;
e) keeping separate the authorities responsible for detention from those
in charge of interrogation;
f) training officials involved in custody, interrogation or treatment
of prisoners to ensure that torture or ill-treatment is proscribed.

5. Rights
relating to a fair trial

Since the determination of guilt or innocence profoundly effects a prisoner's
basic rights, the procedures by which such a verdict is reached must be
fair. Amnesty International therefore respectfully urges the Court to find
as essential the following judicial guarantees:

a) the right
to be heard before a competent, independent and impartial tribunal within
a reasonable amount of time;
b) the right to be presumed innocent until proven guilty, a right which
subsumes the right to be heard by an impartial judge, a right to present
evidence and to confront adverse evidence, and the right to be present
during the trial;
c) the right to an adequate defense. This right necessarily includes the
right of access to all evidence used in the proceedings. A prisoner should
also be able to choose his own counsel; if indigent, the state should
provide free legal counsel;
d) the right not to be compelled to testify against oneself or to confess
guilt. The most logical way of making this right effective is to prohibit
the use of confessions extracted by torture or ill-treatment;
e) the right to appeal the judgment to a higher tribunal which presumes
that the accused will receive a verdict in writing and that sufficient
time is given for an appeal to be made.